
SUPPLEMENTAL BRIEF IN SUPPORT OF 
THE POWER OF THE EXECUTIVE (IN 
THE ABSENCE OF LEGISLATION BY 
CONGRESS) TO PREVENT A BREACH 
OF NEUTRAL OBLIGATIONS IMPOSED 
UPON THE UNITED STATES BY THE 
LAW OF NATIONS OR BY TREATY. 

WASHINGTON : GOVERNMENT PRINTING OFFICE \ IMS 


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SUPPLEMENTAL BRIEF IN SUPPORT 
THE POWER OF THE EXECUTIVE (IN 
THE ABSENCE OF LEGISLATION BY 
CONGRESS) TO PREVENT A BREACH 
OF NEUTRAL OBLIGATIONS IMPOSED 
UPON THE UNITED STATES BY THE 
LAW OF NATIONS OR BY TREATY. 


The questions presented are: Has the President 
of the United States, acting through the head of 
an executive department, the power (in the ab¬ 
sence of legislation by Congress) to prevent a 
breach of neutral obligations of the United 
States imposed by the law of nations or by treaty, 
and has the President in the exercise of such 
power the right to direct the refusal of issue of 
clearance to any vessel, the sailing of which he has 
reasonable grounds to believe would be in violation 
of such neutral obligation, by reason of its status 
as a supply or tender ship of a belligerent nation, 
or otherwise 1 


I. 

The duty of a neutral nation under the law of nations 
with reference to supplies to a belligerent war 
vessel is, in general, to prevent any of its ports or 
waters from becoming a base of operation. 

The duty of this Government as a neutral to 
forbid its ports to be made a base of operations for 

83933—15-1 1 






2 


hostile aid is to be found in the general doctrines 
of international law, and also in the conventions of 
The Hague Conference of 1907, as well as in the 
Treaty of Washington. 

The general doctrine is stated in Hall on Inter¬ 
national Law (6th ed., 1909), page 598: 

Much the larger number of cases in which 
the conduct of a neutral forms the subject 
of complaint is when a belligerent uses the 
safety of neutral territory to prepare the 
means of ultimate hostility against his en¬ 
emy, as by fitting out expeditions in it 
against a distant objective point, or by ren¬ 
dering it a general base of operations. 

See also Lawrence’s Principles of Inter¬ 
national Late (5th ed., 1913, pp. 617, 635). 

Professor Holland, in his Letters on War and 
Neutrality (1914), page 315, speaks of the Govern¬ 
ment being empowered— 

* * * to prevent the use of its territory 

as a base: e. g. by aid directly rendered 
thence to a belligerent fleet. 

The Treaty of Washington, Article VI, defined 
the neutral’s duty in regard to one form of use of a 
“ base of operations ” as follows: 

A neutral government is bound: 

First, * * * 

Secondly, not to permit or suffer either 
belligerent to make use of its ports or waters 
as the base of naval operations against the 
other, or for the purpose of the renewal or 
augmentation of military supplies or arms, 
or the recruitment of men. 


3 


Thirdly, to exercise due diligence in its 
own ports and waters, and, as to all persons 
within its jurisdiction, to prevent any viola¬ 
tion of the foregoing obligations and duties. 

The second clause was interpreted by the United 
States as follows: 

The ports or waters of the neutral are not 
to be made the base of naval operations by 
a belligerent. Vessels of war may come and 
go under such rules and regulations as the 
neutral may prescribe: food and the ordi¬ 
nary stores and supplies of a ship, not of a 
warlike character, may be furnished with¬ 
out question, in quantities necessary for im¬ 
mediate wants; the moderate hospitalities 
which do not infringe upon impartiality 
may be extended; but no act shall be done 
to make the neutral port a base of opera¬ 
tions. Ammunition and military stores 
for cruisers cannot be obtained there; 
coal cannot be stored there for succes¬ 
sive supplies to the same vessel, nor can 
it be furnished or obtained in such supplies; 
prizes cannot be brought there for con¬ 
demnation. 

(See Papers Relating to the Treaty of 
Washington, vol. I, p. 71.) 

Lawrence in his International Laiv (5th ed., 
1913, p. 619), says: 

It is suggested that the words [“ base of 
operations ”] should be used to cover cases 
where acts which neutrals need not pro¬ 
hibit when done to a slight extent or for a 
short time, have taken place on such a scale 


4 


or for so long a time as to turn them into 
occurrences highly beneficial to the bellig¬ 
erent in pursuit of his warlike ends. 

See also Naval War College International Law 
Situations (1906), p. 86; (1912), p. 153. 

Lawrence lays down the duties of a neutral 
State as follows: 

(P. 634:) It is the duty of a neutral 
State to prevent the use of any part of its 
territory for the naval or military opera¬ 
tions of the belligerents, or the fitting out 
therein or departure therefrom of warlike 
expeditions organized in the interests of a 
belligerent. 

(P. 642:) We must now deal with the neu¬ 
tral’s duty to prevent belligerent vessels 
from taking on board in its ports and road¬ 
steads with undue frequency and in undue 
amounts such supplies as international law 
allows. For all practical purposes these re¬ 
solve themselves into provisions and fuel, 
for, as we have seen, all war material is 
strictly forbidden. 

Continued use, or the frequency of action com¬ 
plained of, are important elements in constituting 
the use obnoxious to international law and im¬ 
posing on the neutral State a duty of prevention. 

Continuous resort to the same place with 
the object of taking in stores, thanks to the 
resources of the place, is the characteristic 
of a base of operations—that is to say, of 
the point d’appui for renewing and multi¬ 
plying the most varied enterprises against 
the enemy. 


5 


Charles Dupuis on Maritime Responsi¬ 
bilities in Time of War (North American 
Review, vol. 181 (1905) ) : 

Hall in his International Law (6th ed., 1909), 
page 600, says: 

Continued use is above all things the 
crucial test of a base, both as a matter of 
fact, and as fixing a neutral with responsi¬ 
bility for acts in themselves innocent or 
ambiguous. A neutral has no right to in¬ 
fer evil intent from a single innocent act 
performed by a belligerent armed force; 
but if he finds that it is repeated several 
times, and that it has always prepared the 
way for warlike operations, he may fairly 
be expected to assume that a like conse¬ 
quence is intended in all cases to follow, 
and he ought, therefore, to prevent its be¬ 
ing done within his territory. 

In the arguments by counsel for Great Britain 
and the United States before the Geneva Arbitra¬ 
tion Tribunal, the question of the definition of the 
term “ base of naval operations ” was argued at 
considerable length. (See Papers Relating to 
the Treaty of Washington, Yol. III.) Roundell 
Palmer, for Great Britain, argued (Yol. Ill, p. 
434): 

The phrase now in question is a short ex¬ 
pression of the principle that neutral terri¬ 
tory is not to be used as a place from which 
operations of naval warfare are to be car¬ 
ried into effect; whether b3^ single ships, or 
by ships combined in expeditions. * * * 


6 


P. 436: 

There can be no question that under these 
principles and rules any amount whatever 
of coaling by a war steamer of a belligerent 
power in a neutral port was perfectly law¬ 
ful. 

Morrison R. Waite, however, for the United 
States, defined “ base of operations ” as follows 
(Vol. Ill, p. 513): 

All naval warfare must, of necessity, have 
upon land a “ base of operations. ’ ’ To de¬ 
prive a belligerent of that is equivalent to 
depriving him of the power to carry on such 
a warfare successfully for any great length 
of time. Without it he cannot maintain 
his ships upon the ocean. 

A “ base of operations ” for naval war¬ 
fare is not alone, as seems to be contended 
by the distinguished counsel of Great Brit¬ 
ain (sec. 3, Chap. Ill, of his argument), 
“ a place from which operations of naval 
warfare are to be carried into effect.” It 
is not of necessity the place where the bel¬ 
ligerent watches for, and from which he 
moves against, the enemy; but it is any 
place at which the necessary preparations 
for the warfare are made; any place from 
which ships, arms, ammunition, stores, 
equipment, or men are furnished, and to 
which the ships of the Navy look for war¬ 
like supplies and for the means of effecting 
the necessary repairs. It is, in short, what 
its name implies—the support, the founda¬ 
tion, which upholds and sustains the opera¬ 
tions of a naval war. * * * 


7 


This “ base of operations ” must be with¬ 
in the territory of the belligerent or of his 
ally. A neutral which supplies it violates 
his neutrality and may be treated as an 
ally. A belligerent using without permission 
the territory of a neutral for such purpose, 
commits an offense against the laws of neu¬ 
trality and subjects himself to the forcible 
expulsion of his ships of war, and to all 
other means of punishment and redress 
which may be requisite for the vindication 
of the offended neutral sovereign. 

and William M. Evarts (Yol. Ill, p. 460) defined it 
as follows: 

But whenever the neutral ports, places, 
and markets are really used as the bases of 
naval operations, when the circumstances 
show that resort and that relation and that 
direct and efficient contribution and that 
complicity and that origin and authorship, 
which exhibit the belligerent himself, draw¬ 
ing military supplies for the purpose of his 
naval operations from neutral ports, that is 
a use by a belligerent of neutral ports and 
waters as a base of his naval operations, 
and is prohibited by the second rule of the 
treaty. Undoubtedly the inculpation of a 
neutral for permitting this use turns upon 
the question whether due diligence has been 
used to prevent it. 

While the general principles as to what does or 
does not constitute the use of a neutral port as a 
base are established firmly, the particular facts 
will largely determine whether any particular port 


8 


is being so used. As was said by the Geneva Arbi¬ 
tration Tribunal in its award, with reference to 
supplying coal (Papers Relating to the Treaty of 
Washington , Vol. IV, pp. 11, 50, 74, 114, 134, 148) : 

In order to impart to any supplies of 
coal a character inconsistent with the sec¬ 
ond rule prohibiting the use of neutral 
ports or waters, as a base of naval opera¬ 
tions for a belligerent, it is necessary that 
the said supplies should be connected with 
special circumstances of time, of persons, 
or of place, which may combine to give them 
such character. 

At present, The Hague Convention Concerning 
the Rights and Duties of Neutral Powers in Naval 
War No. 13 (1907) (a treaty duly ratified and pro¬ 
claimed as law by the United States) sets forth 
the obligation of a neutral power, with reference 
to furnishing of supplies to a belligerent, in the 
following articles: 

Article 5. 

Belligerents are forbidden to use neutral 
ports and waters as a base of naval opera¬ 
tions against their adversaries, and in par¬ 
ticular to erect wireless telegraphy stations 
or any apparatus for the purpose of com¬ 
municating with the belligerent forces on 
land or sea. 

Article 7. 

A neutral power is not bound to prevent 
the export or transit for the use of either 


9 


belligerent, of arms, ammunitions, or, in 
general, of anything which could be of use 
to an army or fleet. 

Article 18. 

Belligerent warships may not make use 
of neutral ports, roadsteads, or territorial 
waters for replenishing or increasing their 
supplies of war material or their arma¬ 
ment, or for completing their crews. 

Article 19. 

Belligerent warships may only revictual 
in neutral ports or roadsteads to bring up 
their supplies to the peace standard. 

Similarly these vessels may only ship 
sufficient fuel to enable them to reach the 
nearest port in their own country. They 
may on the other hand, fill up their bunkers 
built to carry fuel, when in neutral countries 
which have adopted this method of deter¬ 
mining the amount of fuel to be supplied. 

If, in accordance with the law of the neu¬ 
tral Power, the ships are not supplied with 
coal within twenty-four hours of their ar¬ 
rival, the permissible duration of their stay 
is extended by twenty-four hours. 

Article 20. 

Belligerent warships which have shipped 
fuel in a port belonging to a neutral Power 
may not within the succeeding three months 
replenish their supply in a port of the same 
Power. 1 

1 Reserved by Germany, on signature. 

83933—15 - 2 



10 


Article 25. 

A neutral Power is bound to exercise 
such surveillance as the means at his dis¬ 
posal allow to prevent any violation of the 
provisions of the above articles occurring 
in its ports or roadsteads or in its waters. 

It is to be noted that articles 5, 7, 18, 19, and 20 
contain merely a restriction of a prohibition upon 
a belligerent; and no one of them expressly im¬ 
poses any obligation upon a neutral Power. Arti¬ 
cle 25, however, creates the obligation of the neu¬ 
tral to prevent any violation of the provisions of 
the other articles. 

By the express provision of article 7, the neutral 
is not bound to prevent the export, for the use of a 
belligerent, of supplies which can be used by its 
army or fleet. Where, however, the export of sup¬ 
plies constitutes in fact the use of the neutral port 
as a base of naval operations, or where it consti¬ 
tutes in fact the replenishing of fuel by a bellig¬ 
erent in a neutral port in contravention of article 
20, then such export is beyond the purview of 
article 7 and becomes obnoxious to the other pro¬ 
visions of the convention. 

While the duty of a neutral nation to prevent its 
territory being used as a base of operations has 
been treated by international law authorities 
largely in connection with the supplying of coal, 
the same doctrine clearly applies to supplies of 
other articles to belligerent war vessels for use in 
promoting hostilities, as well as to the transmis- 


11 


sion of messages and information for hostile pur¬ 
poses. The law as to coal supplies is found in the 
following authorities. 

The decision of the Geneva tribunal, September 
14, 1872, maintained that— 

in order to impart to any supplies of coal 
a character inconsistent with the second 
rule, prohibiting the use of neutral ports 
or waters, as a base of naval operations 
for a belligerent, it is necessary that the 
said supplies should be connected with 
special circumstances of time, of persons, 
or of places, which may combine to give 
them such character. (Papers Relating to 
the Treaty of Washington, Yol. IV, p. 50.) 

Count Sclopis, a member of the tribunal, said 
in his opinion: 

I can only treat the question of the sup¬ 
ply and shipment of coal as connected with 
the use of a base of naval operations di¬ 
rected against one of the belligerents, as a 
flagrant case of contraband of war. 

I will not say that the simple fact of hav¬ 
ing allowed a greater amount of coal than 
was necessary to enable a vessel to reach the 
nearest port of its country constitutes in 
itself a sufficient grievance to call for an 
indemnity. As the Lord Chancellor of Eng¬ 
land said on the 12th of June, 1871, in 
the House of Lords, England and the 
United States equally hold the principle 
that it is no violation of international law 
to furnish arms to a belligerent. But if 
an excessive supply of coal is connected 


12 


with other circumstances which show that 
it was used as a veritable res hostilis, then 
there is an infringement on the second rule 
of Article VI of the treaty. (Ibid., p. 74.) 

Mr. Staempfli, another member of the tribunal, 
said in his opinion: 

The repeated supplies of coal * * * 

are * * * contrary to the second rule 

of the treaty, according to which a neutral 
State may not allow its ports to serve as a 
base of operations for carrying on war or 
cruising. (Papers Relating to the Treaty of 
Washington, Yol. IV, p. 114.) 

The English neutrality proclamation of April 
23, 1898, uses the phraseology of the Treaty of 
Washington. 

Not to permit or suffer either belligerent 
to make use of its ports or waters as the 
base of naval operations against the other or 
for the purpose of the renewal or augmen¬ 
tation of military supplies or arms or the 
recruitment of men. 

To similar purport are the neutrality regula¬ 
tions of Italy of 1895. So, too, the neutrality 
proclamation of Brazil of 1898. So, too, the royal 
decree of Belgium of 1901. 

The Netherlands proclamation of neutrality of 
1904 (in the Russo-Japanese War) extends further, 
and forbids supply of arms or ammunition by 
vessel to a belligerent warship outside the King¬ 
dom, as follows: 

Article IV. It is prohibited within the 
Kingdom to provide ammunition or arms 


13 


to warships of either of the belligerent 
parties to assist them in any way toward 
the increase of their men, arms, or equip¬ 
ment, and to the making of repairs, as also 
toward the providing of the material of 
implements necessary thereto. 

The same prohibition is made in regard 
to every vessel that is evidently destined for 
the direct conveyance to a warship of either 
of the belligerent parties of the assistance 
on goods above mentioned in the first clause . 

Article V. It is prohibited, without the 
previous sanction thereto from the proper 
authority, to afford within the territory of 
the Kingdom to any warship of the bellig¬ 
erent parties provisions for fuel. 

The neutrality proclamation of Denmark of 
1904 expressly forbids export of coal: 

It is forbidden to clear from Danish har¬ 
bors cargoes of coal directly destined for 
the fleets of the belligerents. 

The proclamation of Sweden and Norway of 
1904 may possibly be given a similar construction. 

See also Naval War College — Interna¬ 
tional Law Situations (1904), pp. 70-73; 
(1906), pp. 72 et seq.; (1908), pp. 79-97; 
(1910), pp. 17-44; (1912), pp. 132-137. 

See also: 

Moore’s International Law Digest, Vol. 
VII, pp. 942 et seq. 

Ilisley’s Law of War, p. 205; 

Lawrence’s Principles of International 
Laic, p. 503; 


14 


See also: 

Hall’s International Law, p. 106; 

Westlake’s International Law, pt. 2, p. 

211 . 

Woolsey’s International Law, p. 167; 

Smith & Sibley, International Law, as in¬ 
terpreted during the Russo-Japanese War, 
app., pp. 414, 415; 

Hershey’s International Law and Diplo¬ 
macy of the Russo-Japanese War , p. 202; 

Oppenheim’s International Law, Yol. II, 
355. 

Holland’s Letters on War and Neutrality 
(2nd Ed., 1913, p. 115). 

In 1870 and in 1904, it was held in England that 
“ if colliers are chartered for the purpose of at¬ 
tending the fleet of a belligerent and supplying 
that fleet with coal for the purpose of enabling it 
to pursue its hostile operations such colliers would, 
to all practical intents and purposes, become store- 
ships to that fleet/’ and it was further held that 
such acts would be in violation of the English 
Foreign Enlistment Act. 

(See Naval War College—International 
Law Situations (1905), pp. 175-177.) 

(See also Holland, supra.) 

(See also Smith & Sibley, supra.) 

The Naval War College summed up the situa¬ 
tion, in 1906 (pp. 86-87), as follows: 

It would seem to be evident that while 
the supplying of coal to a belligerent is not 
prohibited by international law, though it 


15 


has been prohibited in many proclamations, 
yet the supplying of coal at such frequent 
intervals as would make the neutral port a 
base is generally regarded as prohibited by 
international law, as is practically admitted 
in the reply of France to Japan in 1905. 

It seems to be the general opinion that the 
supply of fuel, etc. to belligerents should 
be somewhat restricted in neutral ports. 

There are differences of opinion as to the 
extent of necessary restrictions. 

One of the latest authorities states the obliga¬ 
tion of a neutral as follows: 

A neutral State is bound to prevent its 
territory from becoming, in any way, a 
“ base of operations ” for either belligerent. 
Of the various obligations thus arising, the 
following letters deal with the duty of 
the State (1) to prevent the departure 
from its ports of vessels carrying coal in¬ 
tended to supply directly the needs of a 
belligerent fleet; and (2) to prevent the 
reception accorded in its ports to bellig¬ 
erent warships from being such as will 
unduly facilitate their subsequent opera¬ 
tions. 

Holland’s Letters on War and Neutrality, 
(2d Ed., 1913), pp. 112, 113. 

A review of the authorities, therefore, appar¬ 
ently establishes the law as follows: 

A neutral nation commits a breach of its in¬ 
ternational obligations if it allows vessels to clear 


16 


from its ports laden with fuel or supplies for 
transshipment into belligerent warships on the 
high seas, at least provided that there are repeated 
acts of this nature, and that the status of the ves¬ 
sel or the other facts are such as practically to 
effectuate the act of supply in the ports or waters 
of the United States, and provided the Govern¬ 
ment has reasonable knowledge of the facts. See 
in general the official circular of the State De¬ 
partment entitled “ Merchant vessels suspected of 
carrying supplies to belligerent vessels,” dated 
September 19, 1914. 


17 


II. 

The law of nations is an integral part of the law of 
the United States and binding thereupon without a 
declaratory statute. 

1. International law forms a part of the mu¬ 
nicipal law of the United States. 

Hilton v. Guyot (1895), 159 U. S. 113; The 
Paquete Habana (1900), 175 U. S. 677, p. 
700; Wilson, J., in Ware v. Hylton (1796), 3 
Dali. 199, p. 281; Miller v. Ship Resolution 
(1781), 2 Dali. 1, p. 4; Rose v. Himely 
(1808), 4 Cranch. 241, p. 277. 

Hence, the duties imposed upon a neutral nation 
by international law must control the action of 
the United States as a government in the perform¬ 
ance of its functions. No penal code of any na¬ 
tion, however, has ever attempted to cover all the 
duties imposed upon a neutral nation by interna¬ 
tional law. In a code of neutrality laws, such as 
the Federal Penal Code of 1910, sections 9-18, 
we are dealing with municipal law alone and the 
evidence necessary for the conviction of an offender. 
In considering the duties of a neutral nation, we 
are dealing with principles of public law as agreed 
upon or fixed by the customs of nations. The two 
are not coextensive. The obligation of one nation 
to another is quite distinct from the duty of a 
citizen of one nation to comply with the municipal 
laws of that nation. Enforcement of the latter 
duty will not always fulfill the liabilities incurred 

83933—15 - 3 


18 


by reason of the former obligation. (See Papers 
Relating to the Treaty of Washington, Vol. I, p. 
47, 49.) 

The views of the United States Supreme Court 
as to the duty of a nation to perform its interna¬ 
tional obligations are well expressed by Chief 
Justice Waite in United States v. Arjona (1887), 
120 U. S., 479, 484, 486, 487, 488. In that case 
the constitutionality of a Federal statute punish¬ 
ing the counterfeiting of foreign securities was 
upheld on the ground that a failure of Congress 
to pass such a law would have been a breach of 
international obligation: 

The law of nations requires every na¬ 
tional government to use “ due diligence ” 
to prevent a wrong being done within its 
own dominion to another nation with which 
it is at peace, or to the people thereof; and 
because of this the obligation of one nation 
to punish those who within its own juris¬ 
diction counterfeit the money of another 
nation has long been recognized (p. 484). 

Certain of the duties of a neutral nation as they 
existed in the years 1794 and 1818 were enacted 
into statute law by Congress, in the Act of June 
5, 1794, and the act of April 20, 1818 (the provi¬ 
sions of these acts being embodied in Revised 
Statutes, sections 5281 to 5291, and later in the 
Federal Penal Code, sections 9 to 18). 

Since the year 1818, however, the doctrines of 
international law, as to the rights and duties of 
neutral nations, have been largely extended, and 
the scope of the obligations of neutrality to which 
a neutral nation must conform has been greatly 
increased. 


19 


But the statutory law of the United States has 
not been amended or extended to conform there¬ 
with. Failure so to extend its statutory law does 
not, however, relieve or release a neutral State 
from the liabilities imposed by international law. 
This very point was forcibly urged officially by 
the United States Government before the Geneva 
arbitration tribunal in the following terms in its 
official case: 

It must be borne in mind, when consider¬ 
ing the municipal laws of Great Britain, 
that, whether effective or deficient, they are 
but machinery to enable the Government to 
perform the international duties which they 
recognize, or which may be incumbent upon 
it from its position in the family of nations. 
The obligation of a neutral state to prevent 
the violation of the neutrality of its soil is 
independent of all interior or local law. 
The municipal law may and ought to recog¬ 
nize that obligation; but it can neither 
create nor destroy it, for it is an obligation 
resulting directly from international law, 
which forbids the use of neutral territory 
for hostile purpose. The local law, indeed, 
may justly be regarded as evidence, as far 
as it goes, of the nation’s estimate of its 
international duties; but it is not to be 
taken as the limit of those obligations in the 
eye of the law of nations. (Papers Relat¬ 
ing to the Treaty of Washington, Vol. I, 
p. 47.) 

And it was stated that after the act of 1794 
“ the following principles appear to have been 


20 


assumed by the two Governments (Great Britain 
and the United States) : 

1. That the belligerent may call upon the 
neutral to enforce its municipal proclama¬ 
tions as well as the municipal laws. 

2. That it is the duty of the neutral, when 
the fact of the intended violation of its sov¬ 
ereignty is disclosed, either through the 
agency of the representative of the belliger¬ 
ent, or through the vigilance of the neutral, 
to use all the means in its power to prevent 
the violation. 

3. That when there is a failure to use all 

the means in the power of a neutral to pre¬ 
vent a breach of the neutrality of its soil 
or waters, there is an obligation on the part 
of the neutral to make compensation for 
the injury resulting therefrom. pp. 

58, 590 

The opinion of Sir Alexander Cockburn as ar¬ 
bitrator puts this phase of the subject in very 
strong terms: 

Xow it is quite clear that the obligations 
of the neutral state spring out of, and are 
determined by, the principles and rules of 
international law, independently of the mu¬ 
nicipal krw of the neutral. They would 
exist exactly the same, though the neutral 
state had no municipal law to enable it to 
enforce the duties of neutrality on its sub¬ 
jects. It would obviously afford no answer 
on the part of a neutral Government to a 
complaint of a belligerent of an infraction 
of neutrality, that its municipal law was 
insufficient to enable it to insure the observ- 


21 


ance of neutrality by its subjects, the reason 
being that international law, not the munici¬ 
pal law of the particular country, gives the 
only measure of international right and 
obligations. {Ibid., Yol. IV, p. 258.) 

And the official award of the arbitrators stated: 

The Government of Her Britannic Maj¬ 
esty cannot justifv itself for a failure in 
due diligence on the plea of insufficiency of 
the legal means of action which it possessed. 
{Ibid., Yol. IY, p. 51.) 

See also Phillimore’s International Law, 
vol. I, preface 2d ed., p. 21 (1871). 

From a consideration of The Hague Conven¬ 
tion of 1907, No. XIII, it appears that there are 
several obligations imposed upon a neutral nation, 
failure to perform which will involve the nation in 
the gravest of liabilities, financial and otherwise; 
and yet, regarding which, the Congress of the 
United States has made no statutory provision. 

For example, Articles XXIY, III; and espe¬ 
cially Articles V, XIX, XX, and XXV, where- 
under a neutral power is bound to exercise such 
surveillance as the means at its disposal will per¬ 
mit, to prevent a belligerent from using its ports 
and waters as a base of naval operations. 

No statute of the United States enacted by 
Congress contains any provisions under which any 
officer of the United States could act in enforcing 
fully the above obligations of the United States as a 
neutral nation. 

(See also Fenwick's Neutrality Laws of 
the United States (1913), p. 152.) 


22 


Nevertheless, the duty is directly upon the 
Government to fulfill its obligation and to pre¬ 
vent hostile use of its ports. 

If claim should be made against it by a bel¬ 
ligerent nation injured by failure to fulfill this 
obligation, the United States could not plead the 
inadequacy of means of prevention provided by 
its Neutrality Laws. 

See supra and Lawrence 9 s International 
Law, p. 634. 

Let us suppose for a moment that the 
law of a neutral state is lax in this partic¬ 
ular, and confers on its government in¬ 
sufficient means of maintaining neutrality. 
How would its Minister of Foreign Affairs 
meet the argument of the aggrieved bel¬ 
ligerent that a state is bound to arm its 
executive officers with powers sufficient to 
enable them to perform the obligations im¬ 
posed on it by International Law? 

See also Merighnac’s International Law 
(1912), Vol. Ill, p. 508. 

A neutral can not rely upon defects in its 
domestic law or declarations, or upon the 
omissions contained in them, to escape from 
the obligations which the usage of nations 
has established. (Translated from the 
French.) 

In the absence of action by Congress, and in 
the face of this clear international obligation, it 
is evident that the power to perform its duties 


23 


must rest somewhere in the United States Gov¬ 
ernment. 

It is to be especially noted, therefore, that the 
American counsel, Caleb Cushing, William M. 
Evarts, and Morrison R. Waite, maintained in 
their argument before the Geneva Arbitration 
Tribunal that the power of prevention by the 
Executive was necessary for the discharge of 
international obligations: 

The international duties of Great Britain 
are wholly independent of her own munic¬ 
ipal law, and the provisions of the above- 
cited act of Parliament do not rise to the 
height of the requirements either of the 
law of nations or of the rules of the treaty 
of Washington. That act makes no ade¬ 
quate provision either of prevention or 
punishment; and it contains no provision 
whatever of executive prevention, tvithout 
which no Government can discharge its in¬ 
ternational obligations, or preserve its own 
international peace . 

(.Papers relating to the Treaty of Wash¬ 
ington, Yol. Ill, p. 19.) 

To depend upon punitive municipal laws 
for the maintenance of international neu¬ 
trality, is itself neglect of neutral duty, 
which duty demands preventive interposi¬ 
tion on the part of the executive power of the 
State . 

{Ibid., Yol. Ill, p. 20.) 


24 


III. 

Tlie President (in the absence of legislation by Con¬ 
gress) has the duty and the power to see to the per¬ 
formance of the international obligations of the 
United States and to prevent a breach thereof. 

The Executive is the branch of the Government 
specially charged with the conduct of the foreign 
relations of this country. This is recognized in 
Revised Statutes, section 202, which requires the 
Secretary of State to “ perform such duties as shall 
from time to time be enjoined on or intrusted to 
him by the President ” relative to certain specified 
matters “ or to such other matters respecting for¬ 
eign affairs as the President of the United States 
shall assign to the department.” The President’s 
power over foreign relations is very great, political 
in its character, and of a nature which may re¬ 
quire its exercise in case of emergency. 

If Congress has legislated with regard to a sub¬ 
ject involving the foreign relations or neutral 
obligations of the country, it is, of course, true 
that the President is bound by the statutory law. 
Where Congress has failed to designate his course, 
the President may act, and is in duty bound to 
act, so as to preserve intact the relations of the 
United States with foreign nations; and in so act¬ 
ing, lie may take such steps (not forbidden by 
statute) as may be appropriate to the end. 

In enforcing the duties of a neutral nation 
which have been embodied in statutory law, the 


25 


Executive, as well as the judicial officers of the 
United States, must follow the provisions of the 
statute; and where the statute provides for the em¬ 
ployment by the President of the land and naval 
forces of the United States in a certain specified 
manner, he may not employ the civil forces to per¬ 
form the same functions. 

Gelston v. Hoyt (1818), 3 Wheat., 246; 
Little v. Barreme (1804), 2 Cranch, 170. 

The mere absence of legislation by Congress, 
however, enabling officials of the United States to 
see to it that the neutral obligations of the Nation 
imposed by international law are conformed to, 
can not be deemed to render the United States as 
a nation helpless, or to remove from it all power of 
protecting itself against claims of foreign nations 
that it has violated international law. 

We hold it to be an incontrovertible prin¬ 
ciple, that the Government of the United 
States may, by means of physical force, ex¬ 
ercised through its official agents, execute 
on every foot of American soil the powers 
and functions that belong to it. This nec¬ 
essarily involves the power to command 
obedience to its laws, and hence the power 
to keep the peace to that extent. 

Ex parte Siebold (1893), 100 U. S., 371, 
p. 395. 

The Government of the United States must un¬ 
deniably have the power to protect its own integ¬ 
rity and to fulfill the neutral obligations imposed 
upon it by international law. 


26 


The United States are a sovereign and 
independent nation, and are vested by the 
Constitution with the entire control of inter¬ 
national relations, and with all the powers 
of government necessary to maintain that 
control and to make it effective. 

Fong Yue Ting v. United States (1893), 
149 U. S. 698, pi 711. 

If the legislative body does not exercise this 
power then it is the right and the duty of the 
President of the United States to exercise it. 

The Constitution, Section III, Article II, de¬ 
clares that the President shall take care that the 
laws be faithfully executed. 

The Supreme Court of the United States has 
already held that this duty is not “ limited to the 
enforcement of acts of Congress or of treaties of 
the United States according to their express 
terms, ” but includes “ the rights, duties, and ob¬ 
ligations growing out of the Constitution itself, 
our international relations, and all the protection 
implied by the nature of the Government under 
the Constitution. ” 

In re Neagle (1890), 135 U. S. 1, p. 64. 

The duty of self-preservation is the highest 
function of a Government. 

To preserve its independence and to give 
security against foreign aggression and en¬ 
croachment is the highest duty of every 
nation, and to attain these ends nearly all 
other considerations are to be subordinated. 

The Chinese Exclusion case (1899), 130 
U. S'. 581, p. 606. 


27 


The existence of a duty in a nation to perform 
its obligations as a neutral must therefore be ad¬ 
mitted. The corollary must then follow that if 
the Legislature has omitted to provide the means 
for fulfilling this duty, the Executive must of 
necessity be charged with it. To fulfill the duty, 
the President’s power must be coextensive with 
the obligation on which the duty is predicated. 
His power must be adequate to meet the necessity, 
and can not fall short of that which the necessity 
requires. 

If the power rests upon the duty of the Presi¬ 
dent to preserve the integrity of the Nation (in 
the absence of requisite legislation), and if such 
integrity would be endangered by a failure of the 
Nation to perform its international-law obligations 
as a neutral, then the means by which the Presi¬ 
dent is entitled to execute his power must be all 
such as are necessary to attain the end—the end 
being the requisite performance of such neutral 
obligations. The means can not be less than this, 
for, if so, the President can not perform fully his 
duty. 

It follows, therefore, that he is entitled to use 
any means or instrumentalities of Government 
which may be best fitted for the performance of 
such duty. These means, if the emergency arises, 
may be the employment of the forces of the Army 
or of the Navy (in the absence of statutory restric¬ 
tions). 


28 


Doubtless, it is within the competency of 
Congress to prescribe by legislation that 
any interference with these matters shall 
be offenses against the United States, and 
prosecuted and punished by indictment in 
the proper courts. But is that the only 
remedy? * * * 

There is no such impotency in the Na¬ 
tional Government. The entire strength of 
the Nation may be used to enforce in any 
part of the land the full and free exercise 
of all national powers and the security 
of all rights intrusted by the Constitution 
to its care. The strong arm of the Na¬ 
tional Government may be put forth to 
brush away all obstructions to the freedom 
of interstate commerce or the transporta¬ 
tion of the mails. If the emergency arises 
the Army of the Nation and all its militia 
are at the service of the Nation to compel 
obedience to its laws. 

In re Debs (1895), 158 U. S., 564, pp. 
581, 582. 

Summing up our conclusions, we hold 
that the Government of the United States 
is one having jurisdiction over every foot 
of soil within its territory, and acting di¬ 
rectly upon each citizen; that while it is a 
government of enumerated powers, it has 
within the limits of those powers all the at¬ 
tributes of sovereignty; * * * that in 

the exercise of those powers it is competent 
for the Nation to remove all obstructions 
upon highways, natural or artificial, to the 
passage of interstate commerce or the car¬ 
rying of the mail; that while it may be com- 


29 


petent for the Government (through the 
executive branch and in the use of the en¬ 
tire executive power of the Nation) to forci¬ 
bly remove all such obstructions, it is 
equally within its competency to appeal to 
the civil courts. * * * 

In re Dels (1895), 158 U. S., 564, p. 599. 

See, also, in this connection, Durand v. Hollins 
(1860), 4 Blatch., 451. 

See also Moyer v. Peabody (1909) 212 tT. S., 78, 
85, where it is said: 

No doubt there are cases where the ex¬ 
pert on the spot may be called upon to 
justify his conduct later in court, not¬ 
withstanding the fact that he had sole com¬ 
mand at the time and acted to the best of 
his knowledge. That is the position of the 
captain of a ship. But even in that case 
great weight is given to his determination 
and the matter is to be judged on the facts 
as they appeared then and not merely in 
the light of the event. ( Lawrence v. Min- 
turn , 17 How., 100, 110; The Star of Hope, 
9 Wall., 203; The Germanic, 196 U. S., 
589, 594, 595.) When it comes to a deci¬ 
sion by the head of the State upon a mat¬ 
ter involving its life, the ordinary rights 
of individuals must yield to what he deems 
the necessities of the moment. Public dan¬ 
ger warrants the substitution of Executive 
process for judicial process. 

The President may also, if he deems best, in¬ 
stead of employing the Army or Navy, resort to 


30 


the courts for an injunction against any persons 
who attempt to interfere with the duties which 
must be discharged by the United States under the 
obligations imposed by international law. 

Every Government, entrusted, by the very 
terms of its being, with powers and duties 
to be exercised and discharged for the gen¬ 
eral welfare, has a right to apply to its own 
courts for any proper assistance in the 
exercise of the one and the discharge of the 
other, and it is no sufficient answer to its 
appeal to one of those courts that it has no 
pecuniary interest in the matter. The ob¬ 
ligation which it is under to promote the 
interest of all, and to prevent the wrong¬ 
doing of one resulting in injury to the 
general welfare, is often of itself sufficient 
to give it a standing in court. * * * 

Whenever the wrongs complained of are 
such as affect the public at large and are 
in respect of matters which by the Con¬ 
stitution are intrusted to the care of the 
Nation, and concerning which the Nation 
owes the duty to all citizens of securing 
to them their common rights, then the 
mere fact that the Government has no 
pecuniary interest in the controversy is 
not sufficient to exclude it from the courts, 
or prevent it from taking measures therein 
to fully discharge those constitutional 
duties. 

In re Debs (1895), 158 U. S., 564, 584, 586. 

In this connection it may be noted that in a case 
where the President by proclamation has prohib- 


31 


ited export of munitions of war the Federal court 
will enjoin a violation of this proclamation, even 
in the absence of any legislation by Congress mak¬ 
ing such violations a criminal offense. 

United States v. Fondeur, 3 Porto Rico 
Fed. Rep., 412, 414. 

Under this joint resolution and the proc¬ 
lamation of the President thereunder, on 
the evidence developed at this hearing, we 
are constrained to hold, and do hold, that 
it is contrary to law to so export the car¬ 
tridges in question at the present time from 
any port in Porto Rico to any port in the 
Dominican Republic; and the restraining 
order will therefore be continued until the 
final determination of the case. We are 
constrained to make this holding, even 
though there is no penalty provided for 
the violation of the joint resolution and 
proclamation mentioned, and because this is 
a civil suit for an injunction. We think 
we have power to do this under the author¬ 
ity of Be Dels, 158 U. S., 564; 39 L. ed., 
1092; 15 Sup. Ct. Rep., 900. A proper 
order in the premises will therefore be pre¬ 
pared, entered, and enforced. 

If the President has the power to seize property 
in time of peril to the safety of the United States, 
then he may lawfully authorize proceedings to en¬ 
force the seizure before the proper courts. (See 
Story, J., dissenting opinion in Brown v. United 
States (1814), 8 Cranch, p. 146.) 

The district attorney is, for this purpose, 
the proper agent of the Executive and of the 


32 


United States. From the character and 
duties of his station, he is bound to guard 
the rights of the United States and to se¬ 
cure their interests. Whenever he chooses 
to institute proceedings on behalf of the 
United States, it is presumed by courts of 
law, that he has the sanction of the proper 
authorities; and that presumption will avail, 
until the Executive or the legislature dis¬ 
avow the proceedings, and sanction a res¬ 
toration of the property. 

Further illustrations of the President’s power 
as the Executive may be found in the following 
instances: 

In the absence of legislation by Congress it has 
been held that the President has the power to 
refuse the right to a foreign cable company “ to 
establish a physical connection between the shores 
of this country and that of any foreign nation,” 
and “ the Executive may effectually enforce its 
decision without the aid of the court.” 

United States v. La Compagnie Francaise 
des Gables Telegraphiques (1896), 77 Fed., 
495. 

In 22 Op. Atty. Gen. (1899), 13, p. 27, it is said: 

The President’s authority to control the 
landing of a foreign cable does not flow 
from his right to permit it in the sense of 
granting a franchise, but from his power to 
prohibit it should he deem it an encroach¬ 
ment on our rights or prejudicial to our 
interests. 

See also 22 Op. Atty. Gen., 408. 


33 


The President’s right, without Congressional 
action, to take such measures as he deemed neces¬ 
sary for the protection of the public property has 
been held to be 44 very clear.” See opinion of 
Attorney General Black (1860), 9 Op. Atty. Gen., 
pp. 520, 521. 

The President’s right to resist invasion of ter¬ 
ritory of the United States by a foreign nation has 
been upheld by Mr. Justice Patterson in TJ. S . v. 
Smith (1806) in the Circuit Court for the District 
of New York (Fed. Cas. No. 16342, p. 1230): 

The right to repel invasions arises from 
self-preservation and defense, which is a 
primary law of nature, and constitutes part 
of the law of nations. 

The President’s decision as 44 to what sover¬ 
eignty any island or country belongs ” was held 
conclusive upon the judicial department in Wil¬ 
liam v. The Suffolk Insurance Company (1839), 
13 Peters, 415, 420, in which case the court ex¬ 
pressly referred to “ the executive branch of the 
Government, which is charged with our foreign 
relations,” and to his decision as being 44 in the 
exercise of his constitutional functions ” and 
44 under the responsibilities which belong to him.” 

Finally, there is explicit precedent for the 
power of the President asserted in this brief; 
for President Washington, prior to the enactment 
of the neutrality law of 1794, took various pre¬ 
ventive measures 44 under the general rules of in¬ 
ternational law, without the aid of a local statute, 


34 


in order to perform what Mr. Jefferson called 
i their duty as a neutral nation to prohibit such 
acts as would injure one of the warring powers.’ ” 
(See Papers Relating to the Treaty of Washing¬ 
ton, Vol. I, pp. 49, 207.) And this power of the 
President to enforce international duties as to 
neutrality was supported, over 80 years ago, by 
the first and leading constitutional law jurists of 
this country: by Story in his Commentaries on 
the Constitution (1832); by William Rawle in his 
Vieiv of the Constitution (1829), and by Thomas 
Sergeant in his Constitutional Law (1830). 

In President Jefferson’s proclamation of July 
2, 1807 (11 Stat., 759), British ships were required 
to depart at once from the harbors and waters of 
the United States, and all intercourse with them, 
their officers, and crews was forbidden, and the 
furnishing of supplies and aid to them was pro¬ 
hibited. These prohibitions were in pursuance of 
the law of nations, but no statutes of the United 
States completely covered infractions of such 
proclamation. 

In President Grant’s proclamation of October 
8, 1870 (16 Stat., 1135), ships of war of the bel¬ 
ligerents were not to be permitted to use the ports, 
etc., of the United States “as a station or place 
of resort for warlike purposes,” or for the pur¬ 
pose of obtaining any facilities of warlike equip¬ 
ment ; they were required to leave within 24 hours 
after entrance; the amount of coal and supplies 
which could be shipped was fixed. 


35 


Similar injunctions were made in President 
Roosevelt’s proclamation of February 11, 1904(33 
Stat., 2332), in the Russo-Japanese war. 

There existed no statutory provisions under 
which all of these prohibitions of the proclamation 
could have been enforced or under which pre¬ 
ventive action could have been taken to prevent 
all infractions of the proclamation by belligerent 
vessels (sections 11, 12, 13, 15, and 17 of the 
Federal Penal Code and corresponding provisions 
in earlier statutes not being broad enough to cover 
all contingencies contemplated by the proclama¬ 
tion). 

The same is true of President Roosevelt’s proc¬ 
lamation. 1 

Hence, unless the President possessed the power 
under the Constitution to enforce his proclama¬ 
tion by taking preventive measures, the procla¬ 
mation was a mere brutum fulmen . 

Such a degree of impotence in this Nation will 
not, however, be presumed, and in the absence of 
any action by Congress tending to deny the pos¬ 
session of power in the President to enforce his 
proclamation by preventive measures, the Presi¬ 
dent must be deemed to act at least by implied 
assent of Congress. In this connection, the recent 

1 See also President Taft’s proclamation of October 24, 
1911 (37 Stat., 1719), in the Italo-Turkish war and Presi¬ 
dent Wilson’s proclamation in the European war (38 Stat., 
63, 66, 69, 72, 75, 79, 82, 85, and 89). 



36 


case of United States v. The Midwest Oil Co 
decided by the United States Supreme Court 
February 23, 1915, is pertinent, in which Mr. Jus¬ 
tice Lamar said: 

It may be argued that while these facts 
and rulings prove a usage they do not estab¬ 
lish its validity. But government is a prac¬ 
tical affair intended for practical men. 
Both officers, lawmakers, and citizens natu¬ 
rally adjust themselves to any long-con¬ 
tinued action of the executive department, 
on the presumption that unauthorized acts 
would not have been allowed to be so often 
repeated as to crystallize into a regular 
practice. That presumption is not reason¬ 
ing in a circle, but the basis of a wise and 
quieting rule that in determining the mean¬ 
ing of a statute or the existence of a power 
weight shall be given to the usage itself— 
even when the validity of the practice is the 
subject of investigation. * * * 

Nor do these decisions mean that the 
Executive can by his course of action create 
a power. But they do clearly indicate that 
the long-continued practice, known to and 
acquiesced in by Congress, would raise a 
presumption that the withdrawls had been 
made in pursuance of its consent or of a 
recognized administrative power of the 
Executive in the management of the public 
lands. * * * 

The Executive, as agent, was in charge 
of the public domain; by a multitude of 
orders extending over a long period of time 


37 


and affecting vast bodies of land, in many 
States and Territories, he withdrew large 
areas in the public interest. These orders 
were known to Congress, as principal, and 
in not a single instance was the act of the 
agent disapproved. Its acquiescence all the 
more readily operated as an implied grant 
of power in view of the fact that its exercise 
was not only useful to the public but did 
not interfere with any vested right of the 
citizen. 

To sum up, it is maintained that, in ways short 
of making laws or disobeying them, the Executive 
may be under a grave constitutional duty to act 
for the national protection in situations not cov¬ 
ered by acts of Congress . 

The President’s functions under the Constitu¬ 
tion are such as to point to him, and him alone, 
as the active agent of the Government who can 
and who must meet the emergency, by using pre¬ 
ventive measures when necessary to avert the com¬ 
mission of an international wrong. The power 
exists ex necessitate rei as indispensable to the 
public weal. 


38 


IV. 

A treaty is a part of the law of the land, which, like 
international law, the President is bound by oath to 
see “ faithfully executed.” 

The Treaty of Washington of May 8, 1871, binds 
the United States and Great Britain as follows: 

Art. VI. In deciding the matters sub¬ 
mitted to the Arbitrators, they shall be gov¬ 
erned by the following three rules, which 
are agreed upon by the high contracting 
parties as rules to be taken as applicable to 
the case, and by such principles of inter¬ 
national law, not inconsistent therewith, as 
the arbitrators shall determine to have been 
applicable to the case: 

RULES. 

A neutral government is bound— 

First, to use due diligence to prevent the 
fitting out, arming, or equipping, within its 
jurisdiction, of any vessel which it has rea¬ 
sonable ground to believe is intended to 
cruise or to carry on war against a power 
with which it is at peace; and also to use 
like diligence to prevent the departure from 
its jurisdiction of any vessel intended to 
cruise or carry on war as above, such vessel 
having been specially adapted, in whole or 
in part, within such jurisdiction, to warlike 
use. 

Secondly, not to permit or suffer either 
belligerent to make use of its ports or 
waters as the base of naval operations 


39 


against the other, or for the purpose of the 
renewal or augmentation of military sup¬ 
plies or arms, or the recruitment of men. 

Thirdly, to exercise due diligence in its 
own ports and waters and, as to all persons 
within its jurisdiction, to prevent any vio¬ 
lation of the foregoing obligations and 
duties. * * * 

And the high contracting parties agree to 
observe these rules as between themselves 
in future, and to bring them to the knowl¬ 
edge of other maritime powers, and to in¬ 
vite them to accede to them. 

The Hague Convention, No. XIII, is also a 
treaty, ratified and proclaimed as law by the 
United States, which is binding upon the United 
States with other powers ratifying, 1 so far as the 
obligations laid upon neutrals in such treaty are 
concerned. 

A treaty is the law of the land, and in the ab¬ 
sence of legislation by Congress to enforce its pro¬ 
visions the President of the United States must 
have the power to execute the neutral obligations 
imposed by such treaty if necessary for the safety 
of the United States as a neutral nation. 

If no legislation has been provided for its en¬ 
forcement, and if failure to enforce will impose 
international obligations or dangers of a grave 
nature upon the United States, it is the duty of 
the President to act. 

1 Except articles specially reserved, by nations, on signa¬ 
ture. 



40 


Thus, John Marshall said in the Jonathan Rob¬ 
bins case in the House of Representatives (Annals 
of Congress, 6th Cong., 614) : 

Congress unquestionably may prescribe 
the mode, and Congress may devolve on 
others the whole execution of the contract; 
but, till this be done, it seems the duty of 
the Executive department to execute the 
contract by any means it possesses. 

This language has been cited by Attorney Gen¬ 
eral McReynolds in his opinion of August 14, 1913 
(30 Op. Atty. Gen., 217), in which he upheld the 
power of the President to use the administrative 
officers of the United States or the military forces 
or to resort to the courts in order to enforce 
treaty provisions relating to the importation of 
electrical power into the United States from 
Canada. 


41 


y. 

The President has power to enforce the international 
obligations of the United States to prevent its ports 
being used as bases of naval operations, by directing 
collectors of customs to refuse clearance to, or by 
ordering the detention of, vessels which may be 
carrying fuel, arms, and supplies destined to bellig¬ 
erent warships in such a manner or with such a 
status as may constitute a breach of international 
law. 

Revised Statutes, section 4197 (formerly act of 
Mar. 2, 1799, c. 22, s. 93), provides as follows: 

The master or person having the charge 
or command of any vessel bound to a for¬ 
eign port, shall deliver to the collector of 
the district from which such vessel is about 
to depart, a manifest of all the cargo on 
board the same, and the value thereof, by 
him subscribed, and shall swear to the truth 
thereof; whereupon the collector shall grant 
a clearance for such vessel and her cargo, 
but without specifying the particulars 
thereof in the clearance, unless required by 
the master or other person having the 
charge or command of such vessel so to do. 
If any vessel bound to a foreign port de¬ 
parts on her voyage to such foreign port 
without delivering such manifest and ob¬ 
taining a clearance, as hereby required, the 
master or other person having the charge or 
command of such vessel shall be liable to a 
penalty of five hundred dollars for every 
such offense. (See secs. 5320, 5321.) 


42 


Section 4200 (formerly act of Feb. 10, 1820, c. 

11, s. 11) provides as follows: 

Before a clearance shall be granted for 
any vessel bound to a foreign port, the 
owners, shippers, or consignors of the cargo 
of such vessel shall deliver to the collector 
manifests of the cargo, or the parts thereof 
shipped by them respectively, and shall 
verify the same by oath. Such manifests 
shall specify the kinds and quantities of the 
articles shipped respectively, and the value 
of the total quantity of each kind of arti¬ 
cles; and the oath to each manifest shall 
state that it contains a full, just, and true 
account of all articles laden on board of 
such vessel by the owners, shippers, or con¬ 
signors, respectively, and that the values of 
such articles are truly stated, according to 
their actual cost, or the values which they 
truly bear at the port and time of exporta¬ 
tion. And before a clearance shall be 
granted for any such vessel, the master of 
that vessel, and the owners, shippers, and 
consignors of the cargo, shall state, upon 
oath, to the collector, the foreign port or 
country in which such cargo is truly in¬ 
tended to be landed. The oath shall be 
taken and subscribed in writing. (See secs. 
3987, 5564, 5565.) 

Section 4206 (formerly act of Aug. 18 1856, c. 

127, s. 16) provides as follows: 

Previous to a clearance being granted to 
any vessel outward bound, the legal fees 
which shall have accrued on such vessel 


43 


shall be paid at the offices where such fees 
are respectively payable; and receipts for 
the same shall be produced to the collector 
or other officer wdiose duty it may be to 
grant clearances, before a clearance is 
granted. 

It has been argued that the provision of section 
4197, as follows: “ Whereupon the collector shall 
grant a clearance,” makes it mandatory upon the 
collector to clear a vessel upon compliance by the 
master with the provision of that section and of 
the conditions laid down in other sections of this 
title and chapter of the Revised Statutes (sections 
4200, 4202, 4203, 4204, 4205, 4206), and therefore 
that it is impossible for the President or any 
other official to prescribe other conditions than 
those laid down by the statute law. 

It is also urged that the case of Hendricks v. 
Gonzalez (1895), 67 Fed. 351 (C. C. A., 2d Circ.), 
is direct authority upon this point. That case 
held as follows (p. 353) : 

* * * The pi a i n tif£ having complied 

with the conditions entitling him to clear¬ 
ance by the law of Congress (Rev. St., sec. 
4197), it was the duty of the defendant, as 
collector of the port, to grant a clearance 
for the vessel and her cargo, unless he was 
justified in refusing to do so by some other 
statutory authority. Neither the Secretary 
of the Treasury nor the President could 
nullify the statute, and, though the defend¬ 
ant may have thought himself bound to 


44 


obey the instructions of the former, his mis¬ 
taken sense of duty could not justify his re¬ 
fusal of the clearance, and these instruc¬ 
tions afforded him no protection unless they 
were authorized by law. Little v. Bareme, 
2 Cranch, 170; Otis v. Bacon, 7 Cranch, 
589. * * * 

The neutrality laws of the United States 
(Rev. Stat., sec. 5290) authorize collectors 
of customs to detain, until the decision of 
the President is had thereon, “ any vessel 
manifestly built for warlike purposes, and 
about to depart the United States, the cargo 
of which principally consists of arms and 
munitions of war, when the number of men 
shipped on board, or other circumstances 
render it probable that such vessel is in¬ 
tended to be employed by the owners to 
cruise or to commit hostilities upon the sub¬ 
jects, citizens, or property of any foreign 
prince or State, or of any colony, district, or 
people with whom the United States are at 
peace.” The defendant’s justification must 
be found under the authority of this statute, 
or it can not be found at all. That it is not 
found there is almost too plain for argu¬ 
ment. The vessel was not “ manifestly built 
for warlike purposes,” but was an ordinary 
merchant steamship. If she had been built 
for warlike purposes, that fact alone would 
not have authorized her detention by the 
collector, because the statute does not per¬ 
mit even such a vessel to be detained, un¬ 
less the number of men shipped on board or 
other circumstances render it probable that 


45 


she is intended to be employed “ to cruise 
or commit hostilities, ’’ or, in other words, 
engage in naval warfare against the sub¬ 
jects or property of a friendly power. It is 
not an infraction of international obligation 
to permit an armed vessel to sail, or muni¬ 
tions of war to be sent from a neutral coun¬ 
try to a belligerent port for sale as articles 
of commerce; and neutrals may lawfully sell 
at home to a belligerent purchaser or carry, 
themselves, to the belligerents, articles which 
arc contraband of war. * * * 

It is to be observed, however, that the vessel was 
expressly found by the court not to be acting in 
violation of the penal neutrality statutes of the 
United States or in violation of any international 
obligation of the United States as a neutral power. 
Under such circumstances the decision of the case 
was undoubtedly correct. 

The provision that the collector “ shall grant a 
clearance however, is undoubtedly subject to cer¬ 
tain implied conditions not expressed in the stat¬ 
ute itself. 

(1) Thus, Attorney General MacYeagh, in 17 
Op. Atty. Gen., 82 (1881), held that a collector 
had the right u to withhold a clearance from a 
vessel upon which he knows the Government has 
a lien for a penalty ” under Revised Statutes, sec¬ 
tion 2809, and that he was not bound to clear the 
ship if the effect were to defeat the lien and pre¬ 
vent service of the libel to protect it. “A perusal 
of this section / 1 he said, “ shows that it is merely 


46 


meant to establish the ordinary routine for clear¬ 
ing a ship; not to declare that extraordinary cir¬ 
cumstances shall create no exception.” 

(2) An American ship seeking clearance in 
order to trade with a nation with whom the 
United States were at war can be refused clear¬ 
ance. 

See Bas v. Steele (1818), 3 Wash. C. C., 
381 (wrongly cited in 17 Op. Atty. Gen., p. 
83, as 1 Wash. C. C., 394). 

The case comes to this: The collector had 
two conflicting duties imposed upon him; 
one to the individual who asked a clear¬ 
ance, the other to his country. If the desti¬ 
nation of the vessel was the enemy, he had 
a right to refuse a clearance; if not, and 
there were not circumstances to warrant his 
suspicions, he had no such right. He was 
to judge upon circumstances, and to pro¬ 
ceed on such ground as that any just man 
could say there did exist reasons sufficient 
to authorize the belief that this was the 
destination of the vessel. 

On analogy with the above, it is contended that 
wherever the issuance of a clearance would di¬ 
rectly enable a vessel to commit a breach of the 
municipal law, or of international law, then it is 
not only not the duty of the collector to issue such 
clearance, but it is his duty to refuse such clear¬ 
ance. 

Moreover, if the sailing of the vessel would con¬ 
stitute a breach of a neutral obligation of the 
United States imposed by international law, or 


47 


by any treaty, the President (in the absence of 
legislation by Congress) has the power to prevent 
such breach, and he may exercise this preventive 
power through the heads of his executive depart¬ 
ments by detaining the vessel in port, even after 
the issue of a clearance by the collector. Having 
this latter right, he has also the right to order the 
refusal of a clearance prior to its issue, for other¬ 
wise, the issue of a clearance would be a futile act, 
the performance of which the statute can not be 
construed to contemplate or to command. 

Respectfully submitted. 

Charles Warren, 
Assistant Attorney General . 

O 





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